Birth Control, the Supreme Court and me

What started with Jack Daniel’s and birth control has ended up at the Supreme Court.

Under the Affordable Care Act’s guidelines, which went into effect last year, private insurance plans must cover contraceptives. While explicitly religious institutions are exempted, 43 for-profit companies have sued, saying they oppose birth control and that the regulation violates their religious freedom. One of the companies is organic foods maker Eden Foods, which in March sued in federal court in Michigan over the requirements. The company lost twice.

Last week, it asked the Supreme Court to review the decision, arguing that the appeals court relied on a “low-quality” “web ‘blog’” to rule against Eden Foods.

That “blog” is actually the online magazine, Salon. The Sixth Circuit had noted in a footnote an April interview I conducted for Salon with Michael Potter, the founder and chairman of Eden Foods.

“I don’t care if the federal government is telling me to buy my employees Jack Daniel’s or birth control,” Potter had said in the interview. “What gives them the right to tell me that I have to do that? That’s my issue, that’s what I object to, and that’s the beginning and end of the story.”

Eden Foods isn’t questioning the accuracy of Potter’s quotes. Instead, it’s just trying to paint Salon as unworthy of citation. Its proof: Salon also published articles about sex and pop culture.

By the end of this month, the Supreme Court will likely decide whether to take up the Eden Foods case or another, similar case. The government asked the Court to take up another birth control refusal case, filed by the craft store chain Hobby Lobby. The appeals court said in that case that the requirement did violate religious freedom. Either way, the question of whether corporations even have religious liberty rights seems destined for the highest court.

Eden Foods’ organic products are popular in liberal enclaves, but its lawsuit had fallen under the radar. My first piece on the suit prompted hundreds of people to leave complaints on the company’s Facebook page. Eventually, there were over 62,000 signatures on an online petition demanding they drop the case.

That’s when Potter decided to return my call. “I’ve got more interest in good quality long underwear than I have in birth control pills,” he told me. And why was that, I asked? “Because I’m a man, number one and it’s really none of my business what women do,” Potter said. So, then, why bother suing? That’s when he explained that he doesn’t like being told by the government what to do.

This, along with a follow-up interview, inflamed Internet commenters. It also seemed to undermine Potter’s case. “The reason why these quotes matter is because there is nothing in federal law allowing someone to sue because they generally object to having the government tell them what to do — if that were the case, speed limits, workplace safety laws and the minimum wage would all be illegal,” wrote ThinkProgress’s Ian Millhiser at the time. He added, “Based on Carmon’s reporting, it’s not at all clear that Potter actually holds the religious beliefs that make up the backbone of his case.”

The Department of Justice, which had to defend the mandate in court, agreed and included the interview quotes in their brief. Eden Foods described the Salon interview in a later filing as an “‘out of context, out of court quotation.’” But as the DOJ later pointed out: “Plaintiffs did not deny the accuracy of the quotation, nor did they provide any context.” That’s what got the attention of the Sixth Circuit Court of Appeals, too.

While Potter’s comments were considered noteworthy, they weren’t ultimately why Eden Foods lost the case.

The Sixth Circuit had already rejected the idea that corporations have the same religious freedom rights as people. “By incorporating his business, Potter voluntarily forfeited his rights to bring individual actions for alleged corporate injuries in exchange for the liability and financial protections otherwise afforded him by utilization of the corporate form,” Judge Daughtrey wrote. She added, “We are not inclined to so ignore law, precedent, and reason.”

In other words, to even care whether Michael Potter was suing over birth control because of religious belief, the court would have to believe that his religious liberty and that of his company were one and the same. And it didn’t.

Which brings us to the ten strangest facts about penises.

That’s one of the articles published by Salon – though not one I authored – that Eden Foods listed in its petition to the Supreme Court as a disqualifier.

“Rather than investigative journalism, this ‘blog’ can more accurately be described as a tabloid,” sniffed Eden Foods’ petition, going on to list a few articles with apparently disqualifying titles, including “The best of vine porn– it may be difficult to find adult material on the app, but it’s there alright – and some of it doesn’t suck.”

For all the attempts to discredit the venue, the filing never accuses me of misquoting Potter. Indeed, even in the firestorm that followed, Potter himself never suggested I did either.

After the Salon interview was published, Potter and I spoke again. He was upset, accusing me of acting with “malevolence” and inciting “hate” against him. I asked him repeatedly if he saw any errors or misrepresentation in the reporting. “Everything is accurate,” he replied.

That was the last I heard from him. The Supreme Court will have the final word.